Lessee shall not, without the written consent of the Lessor on such conditions as Lessor may prescribe, occupy or use the apartment or permit the same or any part hereof to be occupied or used for any purpose other than as a private dwelling for the Lessee and Lessee’s spouse, their children, grandchildren, parents, grand-parents, brother and sisters and domestic employees. . . .” Several court decisions have interpreted this language to mean that family members of the tenant-shareholders may reside in the apartment together with the tenant-shareholders, but may not replace the tenant-shareholders as residents while the tenant-shareholders reside elsewhere, unless Board approval is obtained for a sublease. Decisions favoring this interpretation have been issued by the Appellate Division and Appellate Term for the First Judicial Department, which covers Manhattan and the Bronx.
The Appellate Division for the Second Department – which includes Brooklyn, Queens, Staten Island, Nassau, Suffolk, Westchester, and four other counties – has disagreed with the First Department’s interpretation. In the Second Department’s view, paragraph 14 is ambiguous and does not expressly require that Board approval be obtained for a tenant-shareholder’s family member to reside in an apartment while the tenant-shareholder is not in residence. The Second Department’s view was recently followed by a trial court in Nassau County in 221 Middle Neck Owners Corp. v. Paris, 2017 N.Y. Misc. LEXIS 2087, 2017 N.Y. Slip Op. 27183 (District Ct. Nassau Co. June 1, 2017).
This case was brought by a Cooperative seeking to terminate a tenant-shareholder’s proprietary lease on the ground that the tenant-shareholder’s daughter was residing in the apartment while the tenant-shareholder herself resided elsewhere. According to the Cooperative, this constituted an unauthorized sublease of the apartment. It was undisputed that no consent to subletting had ever been sought or granted. The court analyzed the language of paragraph 14 and noted that it does not specifically prohibit one of the listed family members, such as a child, from residing in the apartment while the tenant-shareholder lives elsewhere. The court agreed that the lease language “is ambiguous and does not expressly require that consent be obtained for the type of arrangement at issue in this case,” and noted at least one lower-court decision within the Second Department specifically upheld such an arrangement. Accordingly, the court concluded that further proceedings would be needed to determine the meaning of paragraph 14.